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The “Inevitable” Accident Defence

The extreme weather we have experienced this year has caused treacherous driving conditions and wreaked havoc on our roads. Avoiding potholes, flooding, and black ice has contributed to many accidents – but who is liable in these circumstances? Are drivers expected to be aware of the hazards that come along with driving, or do these external factors render these accidents “inevitable”?

In order to have a successful personal injury claim in Ontario, the Plaintiff must prove that the negligence of another party was the cause of their loss. One of the defences available to the Defendant is to plead that the accident was inevitable.

Once the Plaintiff has proven a case of negligence, a Defendant relying on the defence of an inevitable accident must prove that, “…some event had occurred in which they had no control and that the resulting consequence caused by the event could not have been avoided by the exercise of reasonable care.” Simply put, the Defendant must prove that the accident could not have been avoided despite driving with reasonable care and diligence.

A similar evaluation of the Defendant’s actions will be applied to cases involving potholes; the driver is expected to look well ahead and adjust their driving according to road conditions.

The inevitable accident defence can be used not only in cases of black ice or potholes, but also where accidents are attributed to a medical condition, sudden mechanical failure, or an animal darting onto the roadway.

The Defendant in the case of Boomer v. Penn claimed that he suffered an unexpected insulin reaction and abnormally low blood sugar which compromised his awareness and ability to drive. The Court found it difficult to believe that a motorist who suffered a sudden diabetic seizure could have driven as far as the Defendant did in that case. The Defendant admitted he had experienced similar reactions in the past which he remedied by taking sugar. The Defendant was found negligent for not having his sugar with him while driving when he was fully aware of his condition and the consequences of having low blood sugar. The Court also found that if he had his sugar with him, he may have had the opportunity to ingest it prior to the collision which may have resolved his condition and possibly prevented the accident.

If a driver suffers a sudden stroke or heart attack and had no health history that would indicate such a risk, the Court may rule differently.

In the case of a mechanical defect, the Defendant is required to establish that the failure could not have been prevented or discovered with reasonable vehicle inspection or maintenance.

In the case of Rintoul v.X-Ray and Radium Industries Ltd., the Defendant attributed the accident to a sudden failure of the vehicle’s brakes. The Court found the Defendant liable as there was no evidence that the vehicle was properly maintained or inspected prior to the accident. Further, there was no evidence to explain why the brakes – which were working properly immediately before and after the accident – failed momentarily at the time of the accident. Last, the Court found that the emergency hand brake was not in good working order, which prevented the Defendant from bringing the vehicle to a stop and may have otherwise allowed him to avoid the collision.

Although commonly plead, the defence of inevitable accident places a heavy burden on the Defendant and will only succeed in circumstances where the events eliminate any reasonable opportunity for the driver to respond and are truly unforeseeable.

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Michael Giordano is a founding partner of Avanessy Giordano LLP. Prior to establishing his own practice, he was a partner of a prominent Mississauga personal injury firm.

He completed his law degree at the University of Ottawa. Prior to law school, Michael studied English and Law & Society at York University.

Michael is an active member of the Ontario Trial Lawyers Association and is the current Vice-Chair of the New Lawyers Division. He is a regular contributor to the OTLA blog and has also written for The Litigator.

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